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LETTER 



TO THE 



COMMISSIONEE OF INDIAN AFFAIRS, 



UPON THK 



CLAIMS OF THE INDIANS 



RSMAINIMO 



IN THE STATES EAST 



C 



BY WM. H. THOMAS. 



WASHINGTON, D, C. : 
BUELL & BLANCHABP, PRINTERS. ; 
1853. 






ixchangfe 

Peabodr Inst.,Ealto. 



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TO TEE 



COMMISSIONER OF INDIAN AFFAIRS. 



Washington City, May 5, 1853. 

Sir : Whereas the Cherokees residing west of the Mis- 
sissippi river have sent on a Delegation to this place, for 
the purpose of concluding a treaty to recede to the United 
States 800,000 acres of land acquired by the Eastern Cher- 
okees, under the treaty of 1835 ; and whereas said Dele- 
gation have, for some time past, been endeavoring to con- 
clude a treaty upon terms which, if complied with, will 
exclude from its benefits the portion of the tribe remaining 
in the States east, who have an equal interest with the 
portion of the tribe west, in the lands proposed to be 
ceded. In explanation of their rights, I beg leave to file 
this additional exposition, not only of their rights to the 
lands west, but also of their claims to be provided for, if 
the treaty be concluded. 

At the time the treaty of 1835 was concluded, the lands 
ceded under the first article were owned by the eastern 
portion of the tribe, as designated by a census taken imme- 
diately preceding the date of the treaty, now on file in 
your office, which is referred to in the fifteenth article. 
They held their lands as a family, not as a civilized nation ; 
hence the necessity of a census, to know with whom to 
treat and to whom to make payment. 

A comparison of the census taken of the North Carolina 
Cherokees, under the act of July 29, 1848, with the census 
taken of the tribe in 1835, will prove that those included 
in the latter were embraced in the former census. 

It is not necessary, in this explanation, to inquire into 
the competency of the individual Cherokees of Georgia to 
make the treaty, without the knowledge or consent of the 
portion of the tribe residing in North Carolina, Its provis- 



ions must now be taken as we find them, as furnishing an 
explanation of their riglits. 

Article 1st provides as follows : 

" The Cherokee nation liereby cede, relinquish, and convey to the Uni- 
' ted States all the lands owned, claimed, or possessed by them east of the 
' Mississippi river," Stc, " for and in consideration of the sum of five 
' millions of dollars, to be expended, paid, and invested in the manner stip- 
' ulated and agreed upon in the following articles." 

The 2d article provides, that the United States, under 
former treaties and under the present, as a fulfilment of 
subsisting stipulations, shall convey to the Cherokee Indians, 
within a described boundary west of the Mississippi, seven 
millions of acres of land, with a perpetual outlet west. 

In the last clause of that article it is provided, that the 
United States, in consideration of five hundred thousand 
dollars to be deducted from the sum of five millions, stipu- 
lated to be paid by the United States for the cession of the 
land east of the Mississippi, in the first article, do convey 
to the Cherokees the lands which it is now proposed to 
cede to the United States. 

"And whereas it is apprehended by the Cherokees that in the above 
' cession there is not contained a sufficient quantity of land for the accom- 
' modation of the whole nation, on their removal west of the Mississippi, 
' the United States, in consideration of the sum of five hundred thousand 
' dollars therefor, hereby covenant and agree to convey to the said Indians 
' and their descendants, by patent, in fee simple, the following additional 
' tract of land, situated between the west line of the State of Missouri and 
' the Osage reservation, beginning at the southeast corner of the same, 
' and runs north along the east line of the Osage lands fifty miles, to the 
' northeast corner thereof, and thence east to the west line of the State of 
' Missouri; thence with said line south fifty miles; thence west to the 
' place of beginning — estimated to contain eight hundred thousand acres 
' of land." 

The 15th article of the treaty provides for deducting the 
$'")00,()00, given for the aforementioned tract of land, from 
the price of the lands ceded to the United States, under 
the 1st article. 

" Jt is expressly understood and agreed between the parties to this 
' treaty, that after deducting the amount which shall be actually expended 
' for the |)ayment of improvements," Syc, " and the additional (juantity of 
* lauds," &.C., "the balance, whatever the same may be, shall be equally 
' divided between all the people belonging to the Cherokee nation east, 
' according to the census just completc^d." 

The report of tlie Commissioner who negotiated the trea- 
ty of 1835, at New Echota, Georgia, proves that the North 



6 

Carolina Cherokees were neither present nor represented at 
the negotiation. In his letter addressed to the Secretary 
of War, which bears date the next day after tlie treaty was 
concluded, 30tli December, 1835, after informing the Sec- 
retary that the treaty had been made, he proceeds to 
inform him ' ' that the chiefs of the North Carolina Cherokees 
' did not attend " at the place where the treaty was conclu- 
ded. Notwithstanding the North Carolina Clierokees were 
neither present nor represented at the negotiation, the trea- 
ty, as some of its provisions show, was intended to be made 
acceptable to them, in order to procure their acquiescence 
and surrender of the countr}^ they occupied, which the}' 
held under a grant from the State, bearing date in 1783. 

It was known that the North Carolina Cherokees always 
had been opposed to removal west ; hence the 12th article 
provided that they could have the right to remain in the 
State, and, with the money which would be due from the 
United States, under the treaty, purchase lands for them- 
selves to reside on while they chose to remain east. That 
article also provided that they should have pre-emption 
rights to purchase the lands, including their improvements. 
In order to ascertain the nature of the provisions of the 
treaty, and secure amendments thereto, if deemed neces- 
sary, at the request of the North Carolina Cherokees I 
came on to Washington in 1836. The object of the visit 
is explained in a letter of the Hon. James Graham, under 
date of April 4, 1836, now on file in your office. He was 
at that time the Representative in Congress of the district 
in which the North Carolina Cherokees reside. In the let- 
ter referred to, he says : 

" My friend, Wm. H. Thomas, is now in this city, from North Carolina, 
' where he resides. He has stopped here for a short time, to ascertain wliat 
' is doing, or to be done, with regard to the Indian treaty. Mr. Thomas is 
' the ajrent, I believe, legally and fairly constituted, for a part of the Chero- 
' kee tribe of Indians. I am informed by gentlemen of high respectability, 
' that Mr. Thomas has, for some years past, acted as agent of a part of the 
' Cherokees, and has been very serviceable to them." » * # 

"I called, in company with Mr. Thomas, this day to see you in the War 
' Office, but regret to learn you were absent from indisposition. I have 
' known Mr. Thomas eight or ten years, and have entire confidence in his 
* honest and upright character." 

The Hon. Bedford Brown, at that time in the Senate 
from North Carolina, also addressed a similar letter to the 



6 

Secretary of War, under date of April 6, 1836, in which 
he says : 

" Mr. Thomas, of North Carolina, who will hand you this, is, as he in- 
' forms me, acting as agent for a part of the Cherokee Indians, and visits 
' this city on business connected with their affairs. I have advised Mr. 
' Thomas to phice before you certain papers and information which he in- 
' forms me he has in his possession," &.c. 

" I have not heretofore had the pleasure of an acquaintance with Mr. 
' Thomas, but, from the representation of others in whom I have entire 
' confidence, he is a gentleman of fair and respectable standing." (The 
original letters aie on file in your office.) 

After several unsuccessful efforts to see the Secretary of 
War, finding that it would not be in my power to obtain 
supplemental articles in favor of the North Carolina Chcro- 
kees, upon advisement with the Senators from North Caro- 
lina, an explanatory agreement was entered into with the 
chiefs wlio negotiated the treaty, which included some of 
the chiefs of the Western Cherokees, which is now on file 
in your office, and it bears date May 26th, 1836. The 
preamble to the agreement, and some of the articles therein 
contained, prove that the North Carolina Cherokees were 
admitted to possess an interest in all the common property 
of the tribe, consisting of lands and annuities, including 
the very land which it is now proposed to cede to the Uni- 
ted States, by the Delegation in attendance for that pur- 
pose. 

Tlie preamble to the agreement explains the position 
and intention of the parties thereto : 

" The Delegation whose names are hereunto subscribed for the Cherokees 

* who have emigrated and are expected to emigrate to their new homes west 
' of the Mississippi, and William H. Thomas for the Cherokees belonging 
' to the following towns and settlements— Qual-la, Alarka, Aquone, Ste- 
' koih, and Cheoih, with their respective settlements, expected to remain 

• east, of the second part. 

" Article 1. It is admitted that the Cherokees above mentioned are enti- 
' tied lo an equal share, proportioned to their numbers, in all the lands belong' 
' ing to the Cherokee nation of Indians ; and, notwithstanding they have 
' been deprived of their share of the annuities since the year 1820, are 
' nevertheless entitled to all sums in the possession of the President of 

* the United States, for the use of and due from the United States to the 
' Cherokee nation of Indians. 

Art. 2 provides : " That the number belonging to said towns and set- 
' tlements be accurately ascertained by two acting Justices of the Peace 

• in and for the counties in which they reside ; shall annually take their 
' census, make out and certify a list showing the number in each town, 
' which list shall be certified by the clerk and chairman of the county 



' court. Agreeably thereto, the President of the United States is request- 
' ed to pay them their proportionate share of all sums arising from the 
' sale or transfer of the common property, mentioned in the first article of 
' this agreement. 

" Art. 3. It is further agreed to, that if any construction be given to 
' any of the articles of the New Echota treaty, whereby the Cherokees 
' belonging to said towns and settlements shall be deprived of an equal 
' share, proportioned to their numbers, in all the sums arising from a sale or 
' transfer of the common property mentioned in the first article of this 
' agreement, payable to the Cherokee nation of Indians or people, we will 
' request the President and Senate of the United States, and they are here- 
' by requested, to allow them such supplemental articles thereto, as shall 
' remove such improper construction, and enable them to receive their 
' equal proportioned share, as above mentioned. 

" Art. 4. It is further agreed, that one claim to which said Cherokees 
' desiring to remain are entitled, by the 12th article of the New Echota 
' treaty, amounting to $53.33 each, intended to place them on terms of 
' equality with those that chose to emigrate in two years from the ratifica- 
' tion of the above-named treaty, who are allowed that sum for removal 
' and subsistence, out of the money arising from the sale of the common 

* property, shall be placed by them on interest in the State Bank of North 
' Carolina, or some other safe institution, to furnish those desiring to emi- 
' grate to their new homes in the west, with removal and subsistence." 

" Art. 5. Provided, that those remaining east should have the use of 
' the hunting ground reserved under the Cherokee treaty of 1791. 

"Art. 6. Should a division of the lands westof the Mississippi, belong- 
' ing to the Cherokee nation as a common property, take place, the above- 
' mentioned Cherokees shall be entitled to have their share laid off for 

* them. 

" Witness our hands and seals : 

' Wm. Rogers, Wm. H. Thomas, (for the North 

' Elias Boudinott, Carolina Cherokees.) 

' Johnson K. Rogers, (who now James Foster, 

resides in this city.) Long Shell Turtle, 

' George Welch, John Fields, 

' John Smith, (Arkansas chief.) James Fields, 

' John Gunter, James Starr, 

' Major Ridge, Andrew Ross, (Brother to John 

' Stanwatie. Ross.) 

"Attest: Joseph A. Foreman." 

The foregoing agreement, and the power of attorney 
from the North Carolina Cherokees, under which I acted, 
with the letters of the Hon. James Graham and Hon. 
Bedford Brown, were, upon the suggestion of the Commis- 
sioner of Indian Affairs, submitted to him, to be laid before 
the Secretary of War, for the purpose of obtaining his 
decision on the rights of the North Carolina Cherokees 
under the treaty of 1835, of which the Commissioner of 
Indian Affairs was to inform me after my return home, 
which caused the following letter to be written : 



8 
" War Department, Office of Indian Affairs, July 19, 1836. 

" Sir : Your communication of the 4th instant has been laid before the 
' Secretary of War, with the accompanying documents, relating to the 
' interest of the Cherokees residing in the State of North Carolina in the 

• treaty of December 29th, 1835. 

" I am instructed to inform you, that it is the opinion of the Depart- 
ment that the Cherokees in North Carolina have an interest, proportion- 

• ate to their numbers, in all the stipulations of that treaty. 

" C. A. HARRIS, Commissioner. 
" Wm. H. Thomas, Esq., 

" ScoiVs Creek P. 0., Haywood Co., J\''. C." 

This decision amounts to an approval of the explanato- 
ry agreement with the chiefs, on which it was based. And 
it is the more to be relied on, because it was made while 
General Jackson was President, and the Hon. Lewis Cass, 
Secretary of War, under whose instructions the treaty was 
made, remained in office. One of the stipulations of the 
treaty, referred to in the decision, was their share of the 
lands ivest of the Mississippi river, which, in accordance with 
the agreement submitted to him, "was to be laid oft' for 
them." 

The Secretary of War did not base his decision upon a 
supposition that the Cherokees in North Carolina would 
remove west with the tribe, because, the agreement itself, 
on which the decision was made, informed him that they 
designed remaining in their native country, and only re- 
move west, as they might subsequently desire to go, of 
their own accord. 

The expense of their removal, and of their subsistence 
one year after their arrival west, and having their share 
of the land laid off for them, would, it was supposed, en- 
courage a reunion of the tribe ; and it is much to be re- 
gretted that so little has transpired in the nation west, 
since the emigration in 1838, to encourage those of the 
tribe remaining in the States east to unite with their breth- 
ren west. The anarchy which for the most part of the 
time has reigned over that country — the war of extermina- 
tion that has been waged between different portions and 
individuals of the tribe, covering the land with innocent 
blood — have driven hiuidreds of the tribe into the sur- 
rounding States, to obtain protection for themselves and 
fiimilies, and many of them are now in exile — the ten- 
dency of which was to prevent the Cherokees, remaining 



9 

in the States east enjoying peace and quietness, from join- 
ing their brethren west. But certainly, as the United 
States were bound " to protect the Cherokees against do- 
mestic violence," and failed to do it, which is the prime 
cause of many of the tribe now being out of the nation, 
they ought not to fail to protect their interest in any treaty 
which may be made. The necessity of such protection^ on 
the part of the Government of the United States, is clearly 
established by past experience, as the records of your office 
fully demonstrate. 

The State of North Carolina, instead of requiring the 
removal of the portion of the tribe within her limits, acqui- 
esced in their remaining ; and at the session of her Legis- 
lature in 1836-'37 passed an act for their protection, which 
prescribed the mode of concluding legal contracts, and rec- 
ognised their right to be represented by attorneys. 

The act provides : 

" That all contracts, of every nature and description, made after the 
' eighteenth of May, one thousand eight hundred and thirty-eight, with any 
' Cherokee Indian, or any person of Cherokee Indian blood within the 
* second degree, lor an amount equal to ten dollars or more, shall be null 
' and void, unless some memorandum thereof be made in writing, and 
' signed by such Indian, or person of Indian blood, or by some other per- 
' son by him authorized, 'in the presence of two creditable witnesses, who 
' shall also subscribe the same." 

Notwithstanding, under the 12th article of the treaty and 
the decision of the Secretary of War, the North Carolina 
Cherokees had the right to remain east, it was required 
that they should purchase land to reside on, as the posses- 
sion of the lands ceded under the treaty had to be given 
or purchased of the State. It became necessary, therefore, 
that lands should be purchased in advance of receiving the 
money due under the treaty. The Indians had neither the 
capacity, means, nor credit, to make the purchase, and to 
supply such articles as might be necessary in forming a 
new settlement. 

Having, by misfortunes incident to the death of a father 
and poverty of a mother, been placed when a boy of only 
thirteen years of age in a store on the frontier line, which 
was engaged in the sale of goods and the manufacture of 
ginseng for the Chinese market, received in exchange for 
goods of the Indians, where I acquired a knowlege of their 



10 

language, manners, and customs. And in order to afford 
protection to me as an orphan boy, the chief of the North 
Carolina Cherokees, as I afterwards ascertained, adopted 
me as one of the clan to which he belonged — agreeably to 
an ancient custom of the tribe — which, though done with- 
out my knowledge or consent, in all probability saved my 
life. This relation the old chief and his people continued 
to respect, which enabled me to exercise an influence in 
after years favorable to the introduction of temperance 
regulations, the translation of the Scriptures, and other 
measures of reform. It is to this position occupied b}^ me 
to which the Hon. James Graham makes reference in his 
letter to the Secretary of War. Owing to this relation, I 
had been selected to visit Washington to represent the 
-N"orth Carolina Cherokees, and to conclude the agreement 
which has been referred to. And now it was owing to the 
same confidence, that I was required by the Indians to aid 
them in making a purchase of lands and such articles as 
might be necessary in forming a new settlement. 

Having obtained the decision of the Secretary of War, 
that these Indians were entitled to all the stipulations of 
the treaty without removal, the twelfth article of the treaty 
having provided that the portion of the money to which 
the Cherokees that remained east were entitled should be 
paid '' as soon as an appropriation was made for the trea- 
ty," which appropriation had already been made ; and the 
ninth article of the treaty having provided that the just 
debts of those Indians should be paid "by the United 
States, out of the money due them ; " and a law having 
been passed by the State of North Carolina, regulating the 
manner in which contracts should be made with these In- 
dians, and recognising their right to transact their business 
by means of powers of attorney — upon the Indians exe- 
cuting to me powers of attorney, authorizing me, in the 
precise manner prescribed by the law in making contracts 
with the Indians, to prosecute their claims against the 
United States, and to receive and receipt for the moneys 
due, I undertook the purchase of the lands, and supplying 
the articles required by the Indians. 

The country selected for their residence was at the base 
of the great Iron or Smokey Mountain, and where they 
would have an uninterrupted outlet to the hunting ground 



11 

reserved for the use of the Cherokees, until settled by the 
whites, under the treaties of 1791 and 1798, which em- 
braces a large extent of uninhabited country in North 
Carolina and Tennessee, including the great Iron or 
Smokey Mountain, and many other mountains which will 
not probably be settled by the whites in the next half cen- 
tury, which has not been relinquished by any subsequent 
treaties. By the agreement which I made in favor of the 
North Carolina Cherokees, which has been referred to, they 
were to have the use of that hunting ground, which privi- 
lege they have continued to enjoy up to the present time, 
which was one cause of the country adjacent thereto being 
selected for their residence. 

In pursuance of the contract made with the Indians of 
North Carolina, I purchased about 40,000 acres of land, 
on the waters of the Oconalupta river, well adapted to the 
condition of the Indians, for agricultural and grazing pur- 
poses. I also supplied those Indians, as they settled on the 
lands, with provisions, clothing, farming and mechanics' 
tools, and many of them with work-oxen and other cattle ; 
also with hogs and sheep, and some with horses, to enable 
them to subsist by agriculture. I also supplied the females 
with cards, wheels, and looms, to enable them to manufac- 
ture their own clothing ; that laid the foundation of the 
subsequent improvements which those Indians have made. 

At the time those supplies were furnished to the Indians, 
I had been for a considerable length of time carrying on a 
lucrative mercantile business, not only in the white settle- 
ment adjoining to the Indian settlements, but also at 
Fort Delany and Fort Butler in North Carolina, and at 
Fort Cass in Tennessee, at which posts I had supplied 
the United States troops with large quantities of provisions, 
clothing, &c., by which the means were accumulated to 
enable me to make the large purchases for the Indians. 

In incurring these large responsibilities for the Indians, 
to enable me to comply with the contract which I had 
made with them, I considered that I was conferring a 
great benefit on them, without subjecting myself or others, 
of whom the purchases were made, to unreasonable delays 
in making payments — not doubting but that the Govern- 
ment would pay the money due to the Indians, to enable 
me to meet the liabilities incurred. I had the strongest rea- 



12 

sons for confiding in the Government. In all the contracts 
I had made for furnisliing the army with provisions, &c., 
I had found no difficulty in obtaining payment of the Gov- 
ernment officers. Knowing that the Government was large- 
ly indebted to the Indians, that they had surrendered the 
lands for which the money was to be paid ; that Congress 
had made the appropriation to pay them ; and that 1 was 
authorized to receive it by powers of attorney, coupled 
with an assignment of interest declared irrevocable, made 
in strict conformity with the laws of the State, which recog- 
nised their right to make the contract and to transact 
their business by means of powers of attorney — at that 
date, Congress had not assumed the power of impairing the 
obligation of contracts made between individuals under the 
laws of a sovereign State, Both the Executive and Supreme 
Court had decided that powers of attorney, coupled with an 
interest, could not be revoked by the principal ; and that the 
Government was bound to protect the interest of the citizens 
in whose favor the assignment was made — I could have 
no grounds for supposing that the time would arrive when 
both Congress and the Executive would sanction laws im- 
pairing the obligation of contracts made under the laws of 
a State, in derogation of her rights, and in total disregard 
of the interest of her citizens, for whose protection and in- 
terest the General Government had been created. But 
the experience of prosecuting the claims of the North 
Carolina Cherokees from 1835 to 1853, a period of up- 
wards of seventeen years, and a large portion of that time 
spent in Washington, as the records of your office prove, 
which was the result of necessity, not choice, has convinced 
me that new powers are assumed by the Federal Govern- 
ment, which, if not intended, have the effect to impair the 
obligation of contracts subsisting under the laws of the 
States, between individuals, in derogation of the rights of 
the former, and frequently to the destruction of the inter- 
est of the latter. 

To prove this, it is only necessary to advert to the execu- 
tion of the Cherokee treaty of 1835. 

The 17th article of that treaty authorized the President 
to appoint a Board of Commissioners to adjudicate the 
claims of individual Cherokees against the United States, 
whose decision, by the terms of the treaty, was declared to 



13 

be ' 'final, and, on their certificate of the amount due the sev- 
' eral claimafits, they should be paid hij the United States " 

The time of the first Board of Commissioners was prin- 
cipally spent in examining and adjudicating the claims of 
the emigrating Cherokees, preparatory to their departure 
for the West. This accounts for the large portion of the 
claims of the North Carolina Cherokees for pre-emption 
rights and reservations, which were presented to the second, 
that were not presented to the first Board for adjudication. 
To enable the North Carolina Cherokees to have their 
claims prepared for adjudication, the second Board of Com- 
missioners, consisting of G-en. John H. Eaton and Edward 
B, Hubley, were sent to Cherokee county, North Carolina, 
to enable them, by being in the country where the claims 
originated, to obtain reliable evidence. 

I prepared the principal part of the claims of the North 
Carolina Cherokees, and the testimony in support of them, 
as the records of the Commissioners prove. 

A small number of the claims for pre-emption and reser- 
vation rights, provided for under the 12th, 13th, and sup- 
plemental articles of the treaty, were examined, allowed, 
and valued by agents appointed for that purpose, while the 
Commissioners remained at Murphey, in 1843. A consid- 
erable number of the claims for pre-emptions were for the 
portion of the tribe occupying the lands I had purchased ; 
and I availed myself of the earliest opportunity to inform 
my creditors that the allowance had been made, and that the 
money, I presumed, would be paid in a short time. This 
statement was made in good faith, and I believed it at the 
time to be correct ; but subsequent events proved that in 
that opinion I was also deceived. 

The Board of Commissioners having, in the decision 
which they had made, adopted rules which would govern 
in their adjudication, returned to Washington to wx'ite up 
decrees. 

Shortly after their arrival, it was discovered that the 
Secretary of War entertained the opinion that he, and not 
the Commissioners, had the right to determine their juris- 
diction. This probably was the result of an opinion enter- 
tained that the Commissioners in the decisions had been a 
little more favorable to the Indians, in the allowance of 
their claims, than had been contemplated. Without giving 



14 

the Board time to write out their decisions, after the labor 
of examining the claims had been performed, for this or 
some other cause, they received a notice from the Secretary 
of War, that "their services were no longer required, and 
' their compensation would cease." This prevented the 
payment of the claims that had been valued, and they 
remain unpaid yet, and which in the aggregate amount to 
$31,260.00. 

After great delay, anotlier Board of Commissioners were 
appointed, who received the appointment with a perfect 
knowledge of the fate of their predecessors, and that a 
similar fate would befal them if they offended in like man- 
ner. They soon discovered that their predecessors had 
committed, in their opinion, an error, in allowing the claims 
of the Indians for pre-emption rights — in deciding in favor 
of the Indians against the United States, when they should 
have decided in favor of the United States against the In- 
dians. To this mode of deciding, of course, the United 
States interposed no objections, notwithstanding the decision 
clearly showed that the rejection was based upon a total 
misapprehension of the treaty and an out-door influence. 
The Commissioners assume three important grounds for 
reversing the decisions of their predecessors : 

1. That the Indians claiming compensation had not, un- 
der the pre-emption privilege, taken out grants for the land. 

2. The number was too large, and it was supposed would 
get larger. 

3. And a man who had been on the Cherokee committee 
had informed them that they were right in rejecting them. 

This position is a clear proof that the Commisioners did 
not understand the grounds upon which their predecessors 
allowed the claims ; hence, they decide that the Indian was 
not entitled to compensation, because lie did not get the 
land, when, if he had received the land, he would have ob- 
tained all that the twefth article of the treaty contemplated, 
and consequently would not have sustained loss to be com- 
pensated for. It was for the loss of that right, and conse- 
quently of the privilege of securing the land, that, under 
the supplemental articles of the treaty, the United States 
agreed to compensate the Indians, to be in lieu of the right. 
I give their own reasoning upon the two last objections. 

The Commissioners, in their decision, say : 



15 

"The late Board of Commissioners (our immediate predecessors) did 

• recognise this class of claims as coming under provisions of the treaty and 
' third supplemental article thereto, and made favorable avv'ards in a few 
' cases. Encouraged by the precedent thus established, we find entered 

• on our dockets between two and three hundred pre-emption claims ; and 

* no doubt many others are in reserve, awaiting our decision." * # * 

" But it is believed that both the Indian Committee and the United States 

* Commissioners fully understood that pre-emption rights were abrogated by 
' the treaty, &c. That such were the views entertained by the Indian Com- 
' mittee is not a matter of conjecture, for we assume the fact upon the evi- 
' dence of one who was secretary to, and subsequently a member of, that 
' Committee." 

Who was this * ' secretary and member of the Cherokee 
' Committee ? " The records themselves show that it was a 
Mr. J. K. Rogers, now residing in this city, who at that time 
represented a few famiUes of Cherokees in Georgia, that 
had no pre-emption rights, and whose per capita would be 
increased, if the money given in lieu of pre-emption rights 
were, by the rejection of the individual claims, added to 
the fund designed for distribution. I presume it was not 
for this portion of his services that he subsequently claimed 
fees of the North Carolina Cherokees, unless he supposed 
it to be the intention of the Government to reward those 
who aided in the defeating of their claims, to the exclusion 
of those who had advocated their payment. This decision 
of the Commissioners, obtained as has been stated, pro- 
duced decisions of the same board, under the same treaty, 
for and against the claims, and part of them allowed, but 
not paid, and they remain in that condition yet, which, if 
a treaty be concluded with the tribe, should be provided 
for. 

Having shown what was the final result of two Boards of 
Commissioners upon the claims of the North Carolina Cher- 
okees, it may be necessary to advert to the per capita fund, 
which, under the twelfth article of the treaty, was to have 
been paid to the Cherokees that remained east, " as soon 
as an appropriation was made for the treaty," which appro- 
priation was made in July, 1836. 

The eighth article of the treaty limited the amount to be 
paid to Cherokees, for commutation of removal and subsist- 
ence allowance, to $53.33. 

Under this provision of the treaty, a considerable num- 
ber of Cherokees removed and subsisted themselves ; but 
John Ross and other chiefs held the Cherokees back, by 



16 

promising to have the treaty set aside until they effected a 
contract on much more favorable terms. Instead of twenty 
dollars per head for removal, they made a contract with 
General Scott, by which the chiefs were to receive sixty- 
five dollars per head, which was only forty-five dollars per 
head more than was paid to other Indians for removing 
themselves. Under this contract, about twelve thousand 
of the Cherokees were removed west, which, if properly 
managed, must have yielded to John Ross and other chiefs 
at least a profit of three hundred thousand dollars. 

But those chiefs did not stop here. By reason of pur- 
chasing and using ox teams, which, instead of mule and 
horse teams, as had been estimated for in the contract at 
*seven dollars per day, were purchased for less than one- 
half of the estimated hire of teams ; consequently, with the 
ox teams, instead of horse and mule teams, it required, in- 
stead of eighty, upwards of one hundred days to reach the 
Cherokee country west. 

For this additional time a new account was prepared by 
John Ross and his associate chiefs, concerned with him in 
the contract for the removal of the Cherokees, and to which 
other items were added, which deserve notice, amounting 
in the aggregate to $581,346.88. 

After forty-five dollars per head had been paid to the 
Cherokee chiefs more than had been paid to individual Cher- 
okees who had removed themselves, to be asking an addi- 
tional allowance seemed unreasonable. I deemed it proper 
to investigate the claims of which this large sum was com- 
posed. I ascertained that the account for subsisting the 
Indians represented that upwards of four hundred Indians, 
w4io died on the way, had received rations as well as the 
living. Another item in the account was for the hire of 
upwards of six hundred teams, returning from Arkansas, 
when they never did return. The accounts, being scruti- 
nized by the Commissioner of Indian Affairs, were rejected 
by him. An appeal was then taken by Mr. Clark, who was 
the attorney of the chiefs, to the Secretary of War, who 
confirmed the rejection by the Commissioner. From his 
decision an appeal was taken to President Van Buren, who 
also confirmed the rejection of the claims as fraudulent. 

Here I supposed that a final decision had been made 
against these fraudulent claims, and returned home. But 



17 

the Cherokee chiefs went west, and procured a decision of 
the Cherokee Council, requesting the payment of those 
cLaims. In 1840, Mr. Van Buren's Administration ceased, 
and a Whig Administration commenced. Through the in- 
fluence of Mr. Clark, the attorney of the Cherokee chiefs, 
those claims were again taken up, the decisions of the pre- 
vious Administrations reversed, and the money paid out of 
the per capita fund. In addition to this, one hundred and 
seventy-two thousand three hundred and sixteen dollars 
and fourteen cents were furnished to the Western Cher- 
okees, to be charged to their proportion of the ])er capita, 
and which was to have been deducted out of their portion 
of the fund, on final settlement, making in the aggregate 
$753,663.02. This sum was not deducted, as it should 
have been, on final settlement, nor was any compensation 
or equivalent paid or secured to the Eastern Cherokees for 
their distributive share. Therefore, under the 12th and 
15th articles of the treaty of 1835, the United States, inclu- 
ding interest, justly owe to the Cherokees remaining in the 
States east, one hundred dollars each, which it becomes the 
duty of the Government, as trustee of the fund, to have 
provided for in any treaty which may be concluded. 

After being satisfied that the per capita fund was be- 
coming exhausted by improper charges, and that the re- 
mainder of the fund, if distributed, would not exceed ten 
dollars for each individual, instead of one hundred and fifty, 
as had been promised by the President when the treaty 
was made ; and after, in vain, by long and protracted ap- 
peals from the Commissioner of Indian Affairs to the Sec- 
retary of War, and from him to the President of the United 
States, to disburse the funds as contemplated by the treaty, 
without success, extending through a period of eight years, 
shortly after Mr. Polk came into office, in 1844, I brought 
the question before him, to correct the errors of the past 
disbursements of the fund. He sent me back to the Indian 
Office for relief, where I had been eight years before. 

After an appeal from the Commissioner of Indian Affairs 
to the Secretary of War — the present Secretary of State — 
he, upon being informed that I had been, during the two 
past Administrations, trying to get a decision by the Pres- 
ident, referred the questions to him for decision. On the 
11th of June, 1845, he referred them to the Attorney Gen- 
eral of the United States. 
2 



18 

On the 19th day of September, 1845, the Attorney Gen- 
eral gave his opinion thereon, as follows : 

" On the 11th of Juno last, you did me the honor to refer to me a report 
' of tlie Conimissioner of Indian Alfairs of the 19lh of May, and a reply 
' thereto of Win. H. Thomas, on behalf of Cherokee Indians, on which 
' you desired my opinion in writing. In a memorandum among the papers 
' transmitted, there are four questions propounded : 

" 1st. Are the Cherokecs remaining in the States of North Carolina and 
' Tennessee entitled, under the 8(h and 12th articles of the Cherokee 
' treaty of December, 1835, to $53.33 for their claims for removal and sub- 
' sistence allowance, which has been paid to the Cherokees in Georgia.' 

" 2d. In the event that the Attorney General should be of opinion that 
' the Cherokees in North Carolina and Tennessee are not entitled to com- 
' pensation for their claims, &c., whether the grant made by the State of 
' North Carolina to the Cherokee Indians, in the year 1783, vested the fee 
' simple title in the Indians while they continued to reside thereon; and 
' whether, under the provisions of the grant, the fee simple title has not 
' vested exclusively in the Cherokee Indians within its limits? 

" 3d. Whether the treaty of 1835, made with the Cherokee Indians of 
' Georgia, does or does not legally convey to the United States the lands 
' granted to the North Carolina Indians, by the act of 1783? Whether 
' the power of the Cherokees, as a nation, had or had not ceased to exist 
' at the time the treaty of December, 1835, was concluded, in consequence 
' of the tribe having passed under the dominion of the States? 

"4th. Whether the relinquishment of interest in the lands, which the 
' treaty of 1835 purports to convey, is or is not confined to those Chero- 
' kees who have an(J do receive their due portion of the consideration 
' money ; and whether the title of those who received no part of the com- 
' pensation has passed to the United States? 

" The first of these involves an inquiry whether, under the treaty of New 
' Echota, those Cherokees who remained in the States of Tennessee and 
' North Carolina are entitled, under the 8th and r2th articles of the treaty, 
' to $53.33 for removal and subsistence allowance. 

" This intjuiry is embarrassed by the fact that those allowances have been 
' made to Cherokees who have remained in Georgia, by decisions at the 
' War Department, and by the fact of payment being made to others of 
' the tribe who did not emigrate. By the joint resolution of Congress, 
' approved June 15, 1844, the interpretation under which the Georgia 
' Indians were paid appears to have been acted on by the War Depart- 
' nient but for a short time, &-c. 

" In the papers accompanying your communication are several state- 
' ments furnished by the Commissioner who negotiated the treaty on the 
' part of the United States, and by respectable pt^rsons who were privy to 
' the negotiation, tending to show that the Indians were assured that those 
' who did migrate should have the benefit of this pecuniary allowance. 

" In its construction, it is said that the language used in treaties with 
' Indians should never be construed to their jirejudice." * * # "How 
' the words of the treaty were understood by this unlettered peoi)le, rather 
' than their actual meaning, should form the rule of construction. 

" According to well-established rules of law, I am of opinion that this 
' evidence is inadmissible to establish a construction of the treaty incon- 
• sistent with its provisions. Wkattver may be done by Coiii^rcss to fulfill 
' expectations thus created, I am clearly of opinion that the Executive can- 
' not execute the treaty on any such construction. 



19 

" The other three questions may be solved into three inquiries : whether 
' the lands in North Carolina belonged to the North Carolina Indians resi- 
' ding upon them. These lands have been sold by the State of North Car- 
' olina, and are, I presume, in the possession of the purchasers. As the 
' Executive of the United States would have no power to divest those in 
* possession, and the question is one for the Judiciary, I have deemed it 
' unnecessary to embrace my views upon it in this communication. Nor 
' have I deemed it proper to express my opinion on the hard measure 
' which seems to have been dealt out to the North Carolina Indians, whose 
' lands have been sold, while they have received no corresponding benefit. 
' I have examined the question as one of legal construction only, and have 
' no doubt of the correctness of my conclusion in that respect. 

" JOHN Y. MASON." 

This opinion, on the 2d of October, 1845, was approved 
by the President of the United States, who made the fol- 
lowing endorsement thereon : "I concur in opinion with 
the Attorney General." 

The following conclusions are deducible from the forego- 
ing opinion of the Attorney General and President of the 
United States : 

1. That hard measures had been dealt out to the Xorth 
Carolina Indians, whose land had been sold, for which they 
had received no corresponding benefit. 

2. That if the decision had been made upon the ques- 
tion submitted, as respected the title of the United States 
to their land, under the treaty of 1835, it would have been 
that it was defective. For if it had not been believed 
that the decision, if made, would be as stated, the reason 
for declining to give it did not exist. 

In the mean time, the Legislatry^e of Xorth Carolina, 
upon my representation of the great injustice being done 
to the North Carolina Cherokees and the unreasonable 
delays in the settlement of their claims, passed the follow- 
ing resolutions in their favor : 

RESOLUTIONS RELATING TO THE CHEROKEE INDIANS. 

" Resolved, That our Senators and Representatives in the Congress of 
' the United States are hereby requested to use their influence in favor of 
' obtaining a speedy settlement of the just claims of the Cherokee Indians 
' residing in this State," &c. 

'^ Resolved, further, That his Excellency the Governor be requested to 
' send a copy of the foregoing resolution to our Senators and Representa^ 
' tives in Congress. 

" Read three times in the General Assembly, and ratified 9th January, 
' 1845. 

" EDWARD STANLY, Speaker of the House of Commons. 
" BURGESS S. GATHER, Speaker of the Senate:' 

After the decision of the Attorney General, and the 



20 

passage of the resolution in favor of the North CaroUna 
Cherokees, in March, 1846, I prepared a new argument 
in favor of their claims, which was submitted to the Com- 
missioner of Indian Affairs, accompanied with a map of 
the lands granted to the Cherokees by the State of North 
Carolina in the year 1783, for his report thereon. On 
the thirty-first day of March, 1846, he made a report, 
in which, after referring to the arguments of counsel for 
the western portion of the tribe, he sa3^s : " There has 
' also been submitted to this office a paper prepared by 
' Wm. H. Thomas, as agent of the Cherokee Indians yet 
' remaining in North Carolina," &c. He enumerates what 
was claimed for them in my argument : 

'' 1. Their portion of the lands west to be set apart for them. 

"2. That their claims for pre-emption rights, reservations, spoliations 
' committed on their property in 1838, improvements under the treaties of 
' 1817 and 1819, and for removal and subsistence to the amountof $53.33 
' each, be allowed to them. 

" 3. That a fair and full proportion of the^e;- capita allowance, under 
' the treaty of 1835, be given to them ; and 

"4. That it shall be left to their own choice when they shall remove 
' west, removal not forming a condition of the payment of their claims." 

In his report thereon, he says : 

" By the supplemental article of that instrument, all claims to pre-emp- 
' tion rights and reservations were relinquished by the Indians, and lor the 
' latter a moneyed compensation was substituted. So far, therefore, as the 
' North Carolina Cherokees were entitled to reservations, and have not been 
' compensated therefor, they are entitled to be paid their value as unim- 
' proved lands. They are also entitled to compensation for spoliations upon 
' their property, and for improvements possessed by them, so far as they 
' have not been paid; and they also possess the right, with those who 
' have removed, to share in the money to be distributed ^jer capita." 

This report of the Hon. Wm. Medill, on the 11th of 
April, 1846, was approved by the Hon. William L. Marcy, 
Secretary of War, and by him, with the accompanying argu- 
ments of counsel of the Indians, was laid before the Presi- 
dent of the United States, b}^ him transmitted to Congress, 
and will be found in the printed documents of that session. 

This investigation of the Executive branch of the Gov- 
ment, and by Congress, led to the ajDpointment of a Board 
of Commissioners to examine the claims of the diflerent 
portions of the tribe, for the purpose of concluding a treaty, 
providing for replacing the funds which had been mis- 
a])plied under the treaty of 1835, and of curing some other 
delects in that treat}', shown to exist by the opinion of the 
Attorney General, 



21 

At first, the Commissioners informed me that they did 
not consider that their instructions embraced the Chero- 
kees east. Upon receiving this information, I made applica- 
tion to tlie Hon. James Graham, then a member in Con- 
gress from the district in which the North CaroUna Chero- 
kees resided ; and he addressed a letter to the President 
of the United States, requesting "that the claims of the 
' North Carolina portion of the tribe might also be acted 
' on by the Commissioners." The President directed this 
to be done. This led to a letter being addressed to me by 
the Board of Commissioners, authorizing me to appear be- 
fore them as the attorney of the North Carolina Chero- 
kees, to advocate their claims. On appearing before the 
Board, I found that the counsel for the Western Chero- 
kees. General Waddy Thompson, was insisting that the 
Cherokees remaining in the States east had, by remaining, 
forfeited their rights ; and that it was the duty of the 
Board to exclude them from the benefits of the treaty 
about to be concluded. In this he was sustained by the 
Cherokees he represented, and by J. K. Rogers. The 
former went for excluding all the Cherokees east, while 
the latter only went for excluding the Cherokees of Qualla 
Town. I presume it was hardly for this service that he 
afterwards claimed fees of the North Carolina Cherokees. 
I replied to his arguments, and furnished each of the Com- 
missioners with a printed copy of the reply. By them it 
was finally decided that the Eastern Cherokees had, by re- 
maining, forfeited none of their rights ; but that the ad- 
journment of Congress was so near at hand, (and it being 
desirable to have the treaty acted on by the Senate,) that 
they would not have time to examine the individual claims 
of the North Carolina Cherokees, which have been enume- 
rated in the report of the Commissioner of Indian Affairs ; 
and if another treaty be concluded with the tribe, justice 
requires that a provision should be inserted to cover them. 

While the treaty of 1846 did not, for want of time to 
examine their claims, provide for all of them, it however 
established their rights to remain while they chose to do so 
in the States east, and at any time they desired to remove 
to the lands occupied by the tribe west of the Mississippi, 
fully recognising their rights to the lands west, in common 
with the balance of the Cherokee people. 

The 1st article of that treaty provides — 



22 

" That tlie lands now occupied by the Cherokee nation shall be secured 
' to lite whole Cherokee people, for their common use and benefit, and a patent 
' shall be issued for the same, including the eight hundred thousand acres 
' l)urchascd, together with the outlet west, promised by the United States 
' in conformity with the provisions relating thereto, contained in the third 
' article of the treaty of 1835, and in the third section of the act of Con- 
' gross approved May 28, 1830, which authorized the President of the 
' United States, in making exchange of land with the Indian tribes, to 
' assure the tribe or nation loith which the exchange is made, that the United 
' States will ever secure and guaranty to them and their successors the coun- 
' try so exchanged with themJ" 

The 4th article of tlic treaty provides tliat all portions of 
the Cherokee people, Eastern as well as Western Cherokees, 
shall have the same interest in the lands west, and that 
they shall not be regarded as the exclusive property of any 
portion of the tribe. 

" And whereas it has been decided by the Board of Commissioners 
' recently appointed by the President of the United States to examine and 
' adjust the claims and difficulties existing against and between the Cher- 
' okee people and the United States, as well as between the Cherokees 
' themselves, that under the provisions of the treaty of 1828, as well as in 
' conformity with the general policy of the United States in relation to the 
' Indian tribes, and the Cherokee nation in particular, that that portion of 
' the Cherokee people known as the ' Old Settlers,' or Western Cherokees, 
' had no exclusive title to the territory ceded in that treaty, but that the 
' same was intended for the use of, and to be the home for, the whole 
' Cherokee nation. By the operation of the treaty of 1828, the Cherokees 
' then west of the Mississippi, by the equitable operation of the same treaty, 
' acquired a common interest in the lands occupied by the Cherokees east 
' of the Mississippi river, as well as in those occupied by themselves west 
' of that river, which interest should have been provided for in the treaty 
' of 1835." 

Tliis article then provides that the United States shall 
compensate the Cherokees residing west at the time the 
treaty of 1835 was concluded for their interest in the land 
east ceded under that treaty, which is followed by the fol- 
lowing stipulation: 

"In consideration of the foregoing on the part of the United States, the 
' Western Cherokees, or Old Settlers, hereby release and quit claim to the 
' United States all right, title, interest, or claim, thoy may have to a com- 
' mon property in the Cherokee lands east of the Mississippi river, and to 
' the exclusive ownership of the lands ceded to them by the treaty of 1833, 
' west of the Mississippi, including the outlet west, consenting and agree- 
' ing that the said land, together with the eight hundred thousand acres 
'ceded to the Cherokees by the treaty of 1H35, shall be and remain the 
' common property of the wliole Cherokee people, themselves included." 

The 0th article provides " tliat the United States should 
* make a fair settlement of all moneys due to the Cherokees, 
' and subject toper capita division," and the balance thus 



23 

found to be due shall be paid over jjer capita in equal 
amounts to all those individuals, heads of families, or their 
legal representatives, entitled to receive the same under 
the treaty of 1835 and the supplement of 1836, being all 
those Cherokees residing east at the date of said treaty. 
The 10th article provides: 

" It is expressly agreed that nothing in the foregoing treaty shall be so 
< construed as in any manner to take away or abridge any rights which the 
' Cherokees remaining in the States east of the Mississippi river had or 
f may have under the treaty of 1835 and the supplement thereto." 

This provision of the treaty recognises the right of the 
Cherokees remaining in the States east to continue in those 
States while they choose to do so, but at the same time 
revives and perpetuates to them and their descendants, as 
a part of the " Cherokee people," their interest in the lands 
and annuities west, with the right to settle the lands at 
any subsequent period. 

This article was of much importance to the Cherokees 
east, but I was anxious to obtain another provision, which 
I regarded as equally important, viz: that, in making the 
settlement and distributing the funds, the sums paid the 
Western Cherokees should be charged to them, and paid 
out of their portion of the money, which would give to the 
Eaj?tern Cherokees their share of the school fund. 

The Board separated without inserting the article I 
desired. I, however, afterwards procured the assent of 
Messrs. Burke and Parris to the provisions desired, but I 
was unable to get the Board together. After the treaty was 
sent to the Senate, I was still anxious to obtain an amend- 
ment; and after the Senate had laid the treaty on the table, 
and when Mr. Ross and his counsel. General Thompson, 
supposed that the treaty would be rejected, the latter pro- 
posed for the Ross Delegation to assent to the amendment 
which 1 had suggested. After it was signed by General 
Thompson for the Ross Delegation, it was sent in by the 
messenger to Judge Mangum, then in the Senate in secret 
session, for the purpose of having it inserted as an amend- 
ment to tke treaty, but which he failed to accomplish when 
the treaty was ratified. 

By reference to the papers filed in your office by the 
Board of Commissioners who negotiated the treaty of 
1846, whicli consisted of Edmund Burke, Albion K. Parris, 
and William Armstrong, Esquires, you will find the argu- 



24 

ments prepared by me in favor of the Eastern Cherokees, 
which are particularly referred to as proof of what has 
been said in reference to tlic negotiation. 

The Commissioners received their appointment from the 
President to investigate the claims of the Cherokees on the 
8th of July, 1846; on the 9th, I was informed by them 
that, under their instructions, they considered that their 
duties were restricted to the Western Cherokees. On the 
10th, I made application to the Hon, James Graham, and 
obtained a letter to the President, recommending that the 
Commissioners be authorized to include the claims of the 
North Carolina Cherokees. I delivered the letter to the 
President on the same day, and he made the following en- 
dorsement thereon : 

" Let the interest of the Eastern Cherokees be referred to the Commis- 
' sioners recently appointed. J. K. POLK." 

This letter was then delivered to the Commissioner of 
Indian Affairs, and on the 13th, with the claims of the 
Eastern Cherokees, was transmitted to the Commissioners. 

After the Commissioners had received the claims of the 
North Carolina Cherokees and instructions of the Presi- 
dent, they addressed a letter to me, as their records show, 
notifying me that they now had jurisdiction of the claims 
of the Eastern Cherokees, and I could appear before them 
to represent their interest as their agent or attorney. 

On the ITtli, I submitted to the Commissioners an addi- 
tional explanation of the claims of the Eastern Cherokees. 

August 3d, I filed another argument in favor of the 
North Carolina Cherokees and others east, on which the 
Commissioners made the following endorsement : 

" Paper submitted by Wm, H, Thomas, Esq,, representing the Cherokee 
' Indians residing in Nortli Carolina. Keceived and filed August S, 1846." 

All the letters referred to are on file in your office. The 
report which accompanied the treaty was prepared by the 
Chairman of the Board of Commissioners, Mr. Burke, who 
was then Commissioner of Patents; and after the Board 
separated, he prepared it at his office. From a letter of his, 
which is also on lile, addressed to the other two Commis- 
sioners, then engaged in framing the articles of tlie treaty, 
it appears that tlie argument of the counsel for tie Western 
Cherokees in favor of excluding the portion of the tribe 
remaining in the States east from the entire benefits of the 
treaty, and my argument in their favor, were referred to 



. 25 

him for his examination and decision. A quotation from 

this letter will explain what is here stated : 

" Patent Office, Jiugust 4, 1846. 
" Let the treaty be so shaped as not to cut out the Cherokees yet remain- 
' ing east from any rights they may have under the treaty. My impression 
' is, that they are entitled io per capita." 

General Armstrong died shortly after the treaty was 
concluded; I have therefore only been able to obtain the 
statements of the other two Commissioners, Messrs. Burke 
and Parris. The former resides in Newport, New Hamp- 
shire, and the latter is mayor of the city of Portland, in 
the State of Maine. Their letters are in reply to letters 
which I had written to them, for statements of their recol- 
lection of the negotiation of the treaty, supposing, as they 
were the Commissioners who negotiated it, that they ought 
to know who represented the Eastern Cherokees, and 
whether any services were performed in their behalf. 

I have already furnished the evidence which the papers 
returned to your office with the treaty contain; I will now 
furnish you with the letters of the Commissioners them- 
selves upon the same subject. On the 2d of last April, I 
addressed a letter to the honorable Edmund Burke, former 
Commissioner, and received the following reply : 

"Newport, N. H., ^pril 18, 1853. 
"Dear Sir: Your letter of the 2d of April has been received. In reply 
I have to say, I remember very well that you applied to the Board of 
Commissioners, to know if they were authorized to take into considera- 
tion the rights and claims of the Cherokees residing east of the Missis- 
sippi, and that we decided that we were not. Afterwards, I know that 
we were authorized by the President, in a written communication of some 
form, to pass also on the claims of the Eastern Cherokees. I know that 
you procured this extension of our authority from the President ; and I 
am also confident that we decided to do no act to the prejudice of the 
rights of the Eastern Cherokees in the treaty which we negotiated. My 
impression is, that we had not time to investigate fully their claims. 
Congress was about to adjourn, and we were pressed for time to conclude 
the treaty. In order to do it, we had to work at night; and the clause to 
which you refer in the treaty (tenth article) was undoubtedly inserted to 
preserve the rights of the Eastern Cherokees. I know further that you 
were the person who represented the North Carolina Cherokees before 
the Board, and that you advocated their interests ably, faithfully, and 
* zealously. 

" I remember many of the circumstances attending the making of the 
' treaty very distinctly. I was Chairman of the Board, and had all the labor 
' to perform, so far as the investigation of documnets and drawing of the 
' report was concerned. I was at the time out of health, and the labor 
' came hard on me. The report is in my handwriting, and when found, 
' will be found to contain some pretty severe strictures upon John Ross. 

"EDMUND BURKE 
" Wm. H. Thomas, Esq., Washington, D. C." 



26 

The letter of Judge Parris was addressed to me from 
Portland, in the State of Mahie. His statements of my ser- 
vices are precisely the same as those of Mr. Burke, except 
that he acids that he has no recollection of " any otlior per- 
' son having represented the Eastern Cherokees during the 
* negotiation." Both of the original letters of the Commis- 
sioners, in their own well-known handwriting, are in my 
possession for your examination, at any time you may 
desire to see them. 

I have obtained these letters, and make reference to 
papers in your office, filed by the Commissioners, for the 
purpose of showing the services performed by me, and that 
at that time no other person attempted to defend the rights 
or claims of the Cherokees remaining in the States east. 

It is within the recollection of the Hon. Thomas L. 
Clingman, Hon. William S. Ashe, and the Hon. Willie P. 
Manguni, that, after the treaty was made, in the acts Avhich 
were subsequently passed by Congress to carry out the ob- 
jects contemplated, and as the records of Congress prove, I 
continued to guard the interest of the Eastern Cherokees. 

A long time had elapsed since the lands, implements, 
and so forth, had been purchased for the Indians by me, 
during which period I had not been able to collect suffi- 
cient money, due to them from the Government, to pay 
the interest upon the debts, much less the principal. And 
after the awards made by the Board of Commissioners in 
favor of those Indians (on which the creditors had been- 
informed payment would certainly be made) had been sus- 
pended, and payment refused, all hopes of ever being able 
to obtain their dues were destroyed. While I was closely 
confined before the Board of Commissioners, engaged in 
negotiating the Cherokee treaty, exerting myself to pre- 
vent advantages being taken by the counsel for the West- 
ern Cherokees, I was compelled to submit to the sacrifice 
of a large quantity of valuable lands and the sale of eight 
likely negroes, to meet the liabilities created, as I sup- 
posed, on the faith of the Government. The conditions of 
my creditors and myself were very different. They had a 
remedy which they could resort to, when they chose to co- 
erce payments; I had none; I was compelled to wait until 
the Government, of its own accord, made payment; not be- 
ing suable, I had no remedy against it by coercion. As to 
using all the means in my power to obtain payment, the 



27 

probability is, that, in the history of the Government, and 
as the records in the public offices prove, no individual of 
the same ability ever furnished stronger evidence of at 
least long-continued perseverance, and that with whatever 
ability I was capable of. But, after having to sacrifice my 
private property to meet the liabilities and to defray the 
expenses incident to the prosecution of claims, which re- 
quired a long series of years in the city of Washington, 
there was nothing to be gained by abandoning the claims 
and quietly submitting to the losses sustained. As the 
last resort, in 1848 I made application to Congress, to at 
least set apart for the North Carolina Cherokees the sum 
of $53.33 each, which, under the treaty, and agreement 
with the chiefs, was to have been done twelve years pre- 
vious. This resulted in the passage of the act of July 29, 
1848, which provides— 

"That the Secretary of War cause to be ascertained the number and 
* names of such individuals and families, including each member of every 
' family, of the Cherokee nation of Indians that remained in the State of 
' North Carolina at the time of the ratification of the treaty of New Echota, 
' May 23, 1836, and who have not removed west of the Mississippi, or re- 
' ceived the commutation for removal and subsistence, and report the same 
' to the Secretary of the Treasury ; whereupon the Secretary of the Treas- 
' ury shall set apart, out of any moneys in the Treasury not otherwise ap- 
' propriated, a sum equal to fifty-three dollars and thirty-three cents, for 
' each individual ascertained as aforesaid ; and that he cause to be paid to 
' every such individual, or his or her legal representative, interest at the 
' rate of six per cent, per annum on such jser capita, from the said twenty- 
' third day of May, eighteen hundred and thirty-six, to the time of the 
' passage of this act, and continue annually thereafter said payment of 
' interest at the rate aforesaid. 

" Sec. 5. Be it further enacted, That whenever hereafter any individual 
' or individuals of said Cherokee Indians shall desire to remove and join the 
' tribe west of the Mississippi, then the Secretary of War shall be authorized 
' to withdraw from the funds set apart as aforesaid the sum of fifty-three 
' dollars and thirty-three cents, and the interest due and unpaid thereon, 
' and apply the same, or such part thereof, to the removal and subsistence 
' of such individual or individuals, and pay the remainder, if any, or the 
' whole, if the said Indians, or any of them, shall prefer to remove them- 
' selves, to such individuals or heads of families, upon their removal west 
' of the Mississippi." 

In addition to my own services in the prosecution of the 
claims provided for in that act, as I was compelled to re- 
turn home after the conclusion of the treaty of 1846, 1 was 
induced to employ General Duff Green and his son, Ben- 
jamin E. Green, to attend to the prosecution of these 
claims in my absence. The interest which has accrued 
under the act for the last two years remains unpaid ; and 



28 

arrangements should be made to have the act compHed 
with, by the appointment of a local agent or otherwise. 
Already live of the Indians have come for their interest, 
and in addition to the lo.»s of time in travelling twelve hun- 
dred miles, by the time they received their small sums of 
interest, the amount received lacked upwards of one hun- 
dred dollars of paying their board at Maher's Western 
Hotel, for which they had to give their note, to be pre- 
sented to next Congress for payment. These are some of 
the fruits of the wise polic}^ adopted by Congress for the 
benefit of the Indians. 

This act, like the 4tli article of the agreement referred 
to, provided for the removal of the North Carolina Chero- 
kees to the Cherokee country west, at any subsequent 
period they may desire to remove. But, while they have 
the right at any time to remove west, they also have a 
right to remain in North Carolina ; while it is their pleas- 
ure to do so, they have as perfect a right to choose to re- 
main east as to go west, it being entirely optional with 
themselves. 

But this law clearly proves that Congress considered the 
North Carolina Cherokees, under the treaties of 1835 and 
184:6, had the same right to the lands owned by the " Cher- 
okee people " w^est of the Mississippi river, as the portion 
of the tribe now residing in that country. This law has 
set apart in the Treasury $53.33 for each Indian, on 
which interest at the rate of six per cent, is to be paid to 
him or his legal representative while he remains in the 
State ; and at any period that any of these Indians or their 
descendants desire to remove west, this principal is to be 
withdrawn, to be used in removing them west, and subsist- 
ing them one year after their arrival at the lands which have 
been assigned by the Government, for a home for the whole 
Cherokee people. And it certainly was not contemplated 
by Congress, that a part of the Cherokee people west 
should, without the consent of those east, exercise the power 
of appropriating tliis common property to their exclu- 
sive use, to the exclusion of the Eastern Cherokees, by 
which the former miglit deprive the latter of any home to 
remove to, and thus disappoint the benevolent inten- 
tion of Congress in providing the means to remove them 
west. And the whole policy of the j)resent chiefs of the 
Cherokees west proves that they consider the smaller the 



29 

number of the tribe the better share, and that they are 
willing to exclude the whole Cherokee people, except them- 
selves, from participating in the advantages of the common 
property of the tribe. 

Hence, in any treaty which may be concluded for the 
cession of the lands west, owned by the "Cherokee peo- 
ple," it will be necessary for the Government of the United 
States to guard the interest of the portion of the tribe re- 
maining in the States east, not only in the land, but also 
in the permanent funds of the nation, which land may be 
described as follows : Lands received of the United States 
west of the Mississippi river in exchange for lands owned 
by the tribe in the States east, under the treaties of 1828, 
1833, and 1835, and the act of Congress of May 28, 1830, 
and for which a patent was issued to the Cherokee people 
by the United States on the 1st of January, 1839, contain- 
ing 14,374,135 ; the title of which land is guarantied, un- 
der the act referred to in the patent, to the Indians and 
"their descendants, with whom the exchange was made." 
As has been shown, by the first article of the treaty of 
1835, and explanatory agreement made with the chiefs, 
as well as by the subsequent treaty of 1846, and act of 
Congress of July 29, 1848, the Cherokees remaining east 
formed a part of the "Cherokee people" with whom the 
"exchange was made," and to whom the United States 
guarantied the lands, as provided by the act of 1830. 
This land is therefore owned by the Cherokee family, or 
"Cherokee people," which, agreeably to the last census, 
taken in 1851, numbers, west of the Mississippi, 17,267 ; 
in the States east of the Mississippi river, 2,133 ; in all, 
19,400, besides a small number embraced in the agent's 
report, not included in the census of those east — which 
gives a little upwards of 740 acres to each Indian. 

In addition to the lands received in exchange for their 
lands east, the Cherokee people have the following funds, 
invested by the United States for their benefit, which 
formed a part of the consideration for the lands ceded to 
the United States under the treaty of 1835, as shown by 
the 15th article of that treaty : 

A national fund of $404,000 

For the purposes of education 300,000 

Orphans' fund 50,000 

$754,000 



30 

which, at six per cent, interest, gives an annual income of 
$45,240. And notwithstanding this large income, which is 
enjoyed exchisively by the portion of the tribe west, they 
seem to think it necessary to cede away a part of the land 
owned by the whole Cherokee people, in part to discharge 
the debts of the Government, which, at most, ought not to 
exceed the expenses of a county organization in one of the 
States. 

But if it be deemed advisable to circumscribe the bound- 
ary of the nation to smaller limits, the Cherokees east are 
not disposed to interpose objections, provided their propor- 
tion of the proceeds of the sale of the common property be 
added to the fund set apart under the act of July 29, 1848, 
and the interest to be paid and the principal applied in the 
same manner as the fund set apart under that act. But if 
this is not done, they claim the right to protest against the 
conclusion and ratification of the treaty ; and if ratified 
without an amendment in their favor, they will consider 
that the United States justl}' owe them a sum equal to their 
just proportion of the common property which may be con- 
veyed or transferred without their consent. 

They consider that their right thereto rests on strong 
equitable grounds : 

1. They contributed their proportion of $500,000 paid 
to the United States for the lands proposed to be ceded. 

2. The policy of the United States, as shown by the acts 
of 1830 and 1848, was to unite the tribe. To guard and 
protect the rights of those remaining in the States cast will 
favor that object. 

3. To permit one portion of the tribe to appropriate the 
common property of all to their exclusive benefit, will have 
the effect to cause a dominant party, which has already 
obtained its power by a sacrifice of the best men in the na- 
tion, to continue measures to reduce the number, and pre- 
vent a union of the tribe, with a view of appropriating the 
whole property of the Cherokee people to their own ben- 
efit. 

As a further proof that a sordid and selfish purpose ex- 
ists, which requires watching and guarding by the United 
States, I have to refer you to some further efforts which 
have been made to practice impositions on the Cherokees 
remaining in the States east. 

In the conclusion of the treaty of 1846, as has been 



31 

shown, and is proved by the papers on file in your office, 
those same chiefs employed able counsel to exclude the 
portion of the tribe remaining in the States east from its 
benefits; and thus, by robbing them of their portion of the 
funds, increase their own per capita. And after the treaty 
was concluded, which guarantied to those remaining in the 
States their share of the money to be distributed per capita, 
and when Congress was called on for an appropriation of 
money to make payment, these same patriotic chiefs em- 
ployed counsel, and endeavored, by every means in their 
power, to get the act of Congress so worded as to enable 
them to exclude the eastern portion of the tribe from the 
benefits which the treaty contemplated; and it was with 
the utmost difficulty that it was prevented. The bill which 
resulted in the passage of the act of oOtli of September, 
1850, was at first so worded as to give to those chiefs what 
they so much desired — the control and distribution of the 
funds ; but failing to accomplish that object by means of 
counsel, aided by some members of Congress, who were 
very probably in some instances influenced by other mo- 
tives besides those of performing their duties to their con- 
stituents, they next sought to accomplish the same object 
by causing the Executive to place a false construction on 
the law. 

The Commissioner of Indian Affairs, j^our immediate 
predecessor, was furnished with arguments by those chiefs 
and their counsel to prove that, because the law provided 
for the payment of the money to the " Cherokee nation," 
therefore it meant to those chiefs who claimed to be the 
constituted authorities of the nation. And as to the por- 
tion of the tribe remaining in the States east, it was 
contended by those patriotic chiefs and their counsel that 
they had forfeited their rights by remaining, and were 
therefore entitled to nothing. 

As absurd as these arguments would seem to be, and not- 
withstanding all that could be said and done in opposition 
to the adoption of such a construction of the law, the influ- 
ences brought to bear were sufficient to lead to the ques- 
tions involved being referred to the Attorney General of 
the United States, for his decision. The fact of submitting 
the questions proves that doubts were entertained as to 
the duty of the Executive in the execution of the law. 

After the questions were referred to the Attorney G-en- 



32 

cral for his opinion, I ap})lieil at that office for information 
respecting the questions propounded, and was shown the 
letter of the Commissioner of Indian Affairs, which was 
accompanied with an able argument of the counsel of the 
chiefs, General Waddy Thompson, intended to influence 
the construction of the law ; which has been stated. As 
an argument had been transmitted in favor of the chiefs 
receiving the whole appropriation, and to the exclusion of 
the individuals of the tribe, and particularly of those re- 
maining in the States east, I was permitted to prepare an 
argument in their favor, which I submitted, after having 
it printed, on the 22d of March, 1851. 

After replying to the sophistry of the argument of the 
counsel of the Western chiefs, I closed witli a reference to 
both portions of the tribe, that contains some historical 
facts, which, as you are probably unacquainted with them, 
have been quoted for ^^our information. 

In speaking of the condition of the North Carolina Cher- 
okees, and the country occupied by them, it is stated — 

" That country is endeared to those Indians by llie graves and sacred 
relics of their ancestors; the bones of their cliildren, sisters, brotliers, 
' fathers, and mothers, lie there; they say, ' VVe cannot leave them ; let us 
' alone in the land of our fathers. Why ask us to remove west? We once 
' owned all the land that could be seen from the tops of our highest moun- 
' tains; will you not permit us to enjoy in peace the small quantity we 
' have purchased ? ' They ask, ' Where are our brothers, who were forced 
' from the mountains of North Carolina ? Two-thirds have been buried on 
' the road to Arkansas, and in that sickly country. Where are the Ridges 
' and Boudinots, who were promised the j)rotection of the United States? 
' Have they not been massacred ? Their blood cries from the ground. 
' Where are their midnight assassins ? Have they not been pardoned by 
' tlie Cherokee Government, without trial, contrary to both law and trea- 
' ties? Will you then ask us to remove, and join a Goverimient too weak 
' and too unjust to protect us, and leave a State where our lives, liberties, 
' and property, are secured.^ — where our rights to remain are guarantied by 
' solemn treaties ?' " 

Fortunately for these Indians, the Attorney General and 
an elderly clerk in his office were not to be influenced by 
those sordid chiefs, as his opinion, here quoted, proves : 
"Office of the Attorney General, Jlpril 16, 18.51. 

"The questions stated by the Commissioner of Indian Aflairs, and by 
' you referred to me for my opinion and advice, have received due consid- 
' eration ; my answers are the following :***** 
« Upon ' Who are the nation within the meaning of the act; and may pay- 
' mont be made to the authorities of the nation as its representative; if not, 
' who are entitled to the money ; how shall they be paid ? ' 

" The two appropriations of $189,442.76 and of $724,603.37, (making 
the aggregate of $914,046.13,) relate to the same class of Indians, and 



S3 

' therefore the questions upon these two appropriations are answered to- 
' gether. 

" The payment must be made to the individuals of the Cherokee nation 
^ per capita, not to the authorities of the nation. 

"If the payment be made to all the individuals of the nation per capita, 
' the faith of the treaties will be preserved, the purview of the statute as 
' well as the proviso will be obeyed ; for payment joer capita, to every indi- 
' vidual composing the nation, will be payment to the nation. 

"Ordinarily, a debt due to a nation, by treaty, ought to be paid to the 

* constituted authorities of the nation ; but, where the treaty and the law 

' appropriating the money both direct the payment to all the individuals of 

* the nation juer capita, the treaty and the statute must prevail. 

"According to the true intent and meaning of these treaties of 1836, 
' and treaty of 1846, taken together as one whole, and comparing their 
' several parts, thereby to find the sense of the contracting parties, as di- 
' rected by the established rules for construing treaties and all other instru- 
' ments, I am of opinion that all the Cherokees who, at the date of the 
' treaty of December, 1835, were residing within the limits of Georgia, 
' North Carolina, Tennessee, and Alabama, or east of the Mississippi, and 

* also those Cherokees who, at the date of the treaty of 6th August, 1846, 
' were residing east of the Mississippi river, were entitled by the fifteenth 
' article of the treaty of 1835 to participate in the distribution of the bal- 
' ance of the purchase money provided for in that article. 

" The treaty of 1846 does not expressly, or by implication, abrogate any 
' of the interests of the Cherokees in the distribution per capita provided 
' for in articles twelve and fifteen of the treaty of 1835. The treaty of 1846 
' intends to provide for the satisfaction of those claims, not to forfeit, re- 
' peal, or annul any of them. 

" Under these provisions, my opinion is that the distribution is to be 
' made per capita, and equally among all the individuals residing east, and 
' also all those residing west, other than the ' Old Settlers' found to be in 

* existence at the time of the distribution ; each being considered as enti^ 
' tied in his own right, and not by representation of another who is dead, 

* and the payment of these distribution shares should be made to the indi- 
' viduals entitled; if of competent age, the shares of children to be paid to 
' the heads of families to which they belong, whether those heads of fami- 
' lies be males or females, father or mother, or persons standing in ' ioco 
' parentis.' 

" In this mode I believe the intentions of all parties' will be substantially 
' carried into effect, and the just purposes of the Government of the United 
' States fulfilled. 

" To attempt to apply to these Indians any nice doctrines of distribution, 
' as ordered by this or that of the several States of our Union, of vested 
' rights, and right vested in each individual Indian at the date of one or 
' other of these treaties, and thence to be traced and claimed per sterpes 
' through a line of regular descent, inheritance, or representation of per- 
' sons ' born in lawful wedlock,' are ideas inapplicable to the known con- 
' dition of an Indian tribe. The attempt to act upon them in this instance 
' would lead to endless difficulty, delay, and confusion, and would more-^ 
' over violate the substantial purposes and the intentions of the treaties and 
' the laws, 

" Question fourth : ' If any of the Cherokees who have never removed 
' west of the Mississippi river are entitled, may they be required to emigrate, 

* as a condition precedent to their being paid ? ' Answer : The treaty of 

3 



34 

' 1835, article twelve, conceded the rights of individuals and families of 
' Cherokees, who were averse to the removal to the Cherokee country west 
' of the Mississippi, to remain east, and to receive their due portions of 
' the money to be distributed per capita. The treaty of 1846, article ten, 
' recognised these claims of the Cherokees, then, at the date of the treaty, 
' residing east of the Mississippi river. On this subject I have hereinbe- 
' fore expressed my views. To require these Indians, so residing east of 
' the river Mississippi at the date of the treaty of August, 1846, to remove 
' to the Cheiokee country west, as a condition precedent to their being 
' paid their dividend per capita of the balance of the purchase money for 
' the lands east of the Mississippi river, ceded by their nation to the United 
' States, would be without any authority of law, and a breach of the faith 
' of the treaties of 183.5 and 1846, as I think and firmly believe. 

" Very respectfully, yours, &c., J. J. CRITTENDEN. 

" Hon. H. H. Stuart, Secretary of the Interior." 

But this question, raised at the Indian Office and decided 
by the Attorney General, was followed by another, ema- 
nating from the same source, a little more remarkable. 
The counsel for the Western Cherokees, having failed to get 
the act of Congress, and afterwards a construction placed on 
it by the Attorney G-eneral, to accomplish the same object — 
viz: the exclusion of the Cherokees remaining east — claimed 
that fees should be paid him out of the portion of the money 
due to the Eastern Cherokees, and procured through the In- 
dian Office the reference of this question also to the Attor- 
ney, who decided against the payment. His arguments 
against the North Carolina Cherokees, and in favor of the 
payment of fees, are on file, and it requires no better evi- 
dence of the fees being claimed, not for advocating the 
claims of the North Carolina Cherokees, but for opposing 
them. I presume that these arguments and mine in reply 
are on file in the office of the Attorney General. 

The following letter and memorial explain another effort 

of one who had been instrumental in defeating a portion of 

the claims of the North Carolina Cherokees, to obtain from 

them fees, which under the circumstances now constitute a 

just claim against the United States. 

" Department of the Interior, 

" Office Indian Affairs, Jlpril 27, 1853. 
" Sir: In compliance with the request contained in your letter of the 
' 16th instant, I enclose to you a copy of the memorial of December 23d, 
' 1851, addressed to the President of the United States, and purporting to 
' be executed by certain Cherokees residing in North Carolina, who com- 
' plain of the conduct of Johnson K. Rogers, Esq., in obtaining, by mis- 
' representation, a portion of their joer capita money. 
" Very respectfully, your obedient servant, 

" GEO. H. MANYPENNY, Commissioner. 
" Wm. H. Thomas, Esq., Washington, D, C." 



35 



" To the President of the United States: 

"The undersigned Cherokee Indians, who remained in the State of 
' North Carolina under provisions of the treaties of 1835 and 1846, beg 
' leave to make known to their Great Father the manner in which they 
' have been treated by one of his agents, by the name of Johnson K. 
' Rogers, appointed to assist in paying their per capita, due from the 
' United States under said treaty. When the disbursing agent came on to 
' make payment, their agent, WiHiam H. Thomas, was absent, not having 
' been informed or notified of the time payment would be made. The 
' Cherokees of Bird-Town were notified to meet for the purpose of being 
' paid, when the said Rogers, through the United States interpreter, repre- 
' sented that he had gained the money for them, and prevented it from go- 
' ing to Arkansas; and though payment was optional on their part, yet 
' they ought to pay him for the work he had done. He further represented 
' that the payment to him was sanctioned by the Government. They at 
' first refused to pay him, on the ground that they had never employed 
' him, but had employed William H. Thomas to attend to their business at 
' Washington, and presumed that he (Rogers) was paid for bringing the 
' money by the Government. But upon the repetition of the great services 
' he had performed, the payments were made as represented and annexed 
' to each of our names. The undersigned respectfully request their Great 
' Father to cause the said Rogers to refund the money paid upon false 
' representations, as they have reason to believe ; and, as in duty bound, 
' they will ever pray. 

" Executed at the Council House, December 23, 1851. 

' Stekoih $20. 00 Ca-to-gah $20. 00 

' Chic-a-sut-ta-hee 20. 00 Oo-no-he-lah 10. 00 



' Cho-ga-bien-ne 20. 00 

' Co-tut-tah 25. 00 

' So-kin-ne 20. 00 

' Chares-town 20. 00 

' Ka-Io-na-hes-ke 27. 50 

' Skit-tah 20. 00 

' Wa-yo-nes-ka 20. 00 

' A-kin-ne 20. 00 

' Col-lox-ie 55.00 

' Oo-san-ih 20. 00 

' 0-cun-ne-ah 20. 00 

' Ooh-lan-ne-he 20. 00 

• Big-su-a-ga 20. 00 

' Oo-tah-e-eutah 20. 00 

' Chu-chu 40. 00 

' Ta-Ie-gees-kah 10. 00 

' Willie 20. 00 

• Oo-yos-ka 20. 00 

' Oos-ta-zettah 20. 00 

• Wa-ha-che 5. 00 

' Walking Stick 10. 00 

' Aguo-ta-ga 60. 00 

' Nau-che-oh 20.00 

' Su-a-ga 20, 00 

' Chu-no-whin-ka 20. 00 

' Ne-to-ne-ah 20. 00 

•Joe 20.00 



Big Cal-loxie 130. 00 

Too-ne-yeh 20. 00 

Jakeh 20. 00 

Su-keh 20.00 

Wah-che-too-ga 10. 00 

Too-ches-tla 20. 00 

Too-wallie 10. 00 

Tah-wieh 35. 00 

Ci-u-to-gah 20. 00 

Nie-ca 25.00 

Ecueh 15.00 

John Lige 30. 00 

Ama-chaina 40. 00 

Will Auter 20. 00 

Wa-che 10. 00 

I-zu-kih 20.00 

Che-lah 20.00 

Cha-wah-cha-cah 40. 00 

Wille-geeska 20. 00 

E-e-so-skie 10. 00 

Oo-che-gees-tah 50. 00 

Tah-cheu-la-nah 13. 00 

I-ee-kah 25. 00 

I-yah-a-nih 30.00 

Old Aroneah 40. 00 

Ned-de 30.00 

Oo-nele-cho-ee 20. 00 



36 

' Tah-ju-se '20. 00 Standing Deer 20. 00 

' Sit-o-wa-gah 20.00 Con-tees-kah 5.00 

' Chu-irol-to-zeh 20. 00 Little John 80. 00 

' To-nah-ee 63.00 Su-ya-tak 20.00 

' John Willson 10. 00 Sam-ned-son 20. 00 

' YaSnah 20. 00 E-ta-la-co-teah 30. 00 

'Tom-co-naught 20.00 Aroneach 40.00 

' Ti-ze-hah 60.00 Starr 10.00 

' Che-an-stutlah 10. 00 Hullah 30. 00 

' Big Jack 20. 00 Arch-auter 5. 00 

• Che-lo-lah 20.00 Ehieh 10.00 

• Oo-la-oh-ah 33. 00 Sallanah 10. 00 

' Oo-tal-ska 20.00 Betsey 10.00 

' Les-sah 20. 00 Chu-no-la-keh 40. 00 

' Choo-la-les-la u5. 00 Steve Arch , 5. 00 

' Tus-que-zan-tah 20. 00 Cun-no-ske-ske 20. 00 

' Nu-e-towah 20. 00 Pigeon 30. 00 

• Wa-kah 20. 00 Cos-su-yo-gih 20. 00 

' Tah-che-tah 40. 00 Ginney 20. 00 

' Chi-u-lah 20. 00 

"Total $2,321.50" 

The memorial sets forth some of the facts connected with 
this transaction, wliich are deemed to require some ad- 
ditional explanations. 

It seems that Rogers succeeded in getting an appoint- 
ment as clerk to the paymaster, by representing to some 
men of influence, at Washington, that the few Cherokees in 
Georgia, who had employed him to prosecute some of their 
claims, owed him fees, which the appointment would enable 
him to secure. The result, however, proves that his pur- 
pose was to use the official character which an association 
with the paymaster gave him, to practice a fraud on the 
North Carolina Cherokees, who had never employed him, 
and to extort from them fees for pretended services, when 
lie had not only rendered them no service, but actually op- 
l)0sed their rights and interests as l\ir as his influence ex- 
tended. 

He claims to be an Indian ; and if being one-eighth Indian 
blood and seven-eighths white blood makes a man an Indian, 
in that pretension at least he is correct. 

The disbursing agent being unacquainted with the coun- 
try, also with the Indians to whom payment was to be 
made, it was but natural that the necessary arrangements 
preparatory to making payment were left to Mr. Rogers. 
Hence, instead of ap])ointing the interpreter usually em- 
plo3^ed, residing at the largest settlement of Indians remain- 
ing east, one by the name of Smith was appointed in the 



county of Cherokee, sixty miles off ; and in the letter 
written to him to meet Mr. Rogers at Qualla Town, secres}^ 
was enjoined. Another interpreter in Georgia also receiv- 
ed notice, and came over to Qualla Town to meet the pay- 
master and Mr. Rogers. The former was appointed inter- 
preter, and the latter was appointed doorkeeper. The 
memorial sets forth the representations made to the In- 
dians. But that probably would have been insufficient, had 
not other arrangements more elfectual been planned by 
Mr. Rogers. No doubt the paymaster supposed that Mr. 
Rogers had performed the services for which he claimed 
compensation, and therefore interposed no obstacles to his 
obtaining his dues. The arrangement was to pay off one 
Indian at a time, and the balance of the Indians were kept 
out of the room, except one, who usually resides most of his 
time in Cherokee county, and was selected to stand by the 
pay-table. As the roll was examined the name of the Indian 
to be paid was announced at the door by the doorkeeper, 
in the Cherokee language. He was told to come in, get 
his money, and pay Mr. Rogers for getting it. When the 
Indian came to the pay-table, and received and receipted 
for his money, the Indian selected for the occasion would 
tell him, in the Cherokee language, "Now pay the Govern- 
ment agent, Mr. Rogers ; " and the amount claimed was 
paid. Probably a more effectual plan could not have 
been adopted. It worked admirably until Bird Tom 
was paid off, and payment had been commenced at Paint 
Town. I happened to get home, and on being informed 
that the Government clerk was collecting fees for services 
which he alleged he had performed, I went immediately to 
the paymaster, and informed him of the imposition being 
practised- I also informed the Indians, and advised them, 
as the Government agent had represented that he alone 
had performed all the services, and that no other persons 
had performed any in securing the money to be paid, and 
that the Government had decided that the Greens and my- 
self were entitled to nothing, that no fees should be paid to 
anyone until the facts were ascertained. By the disbursing 
officer and the Indians refusing to make further payments, 
this grand scheme was arrested, and no further payments 
made. But for this timely interference, it is probable, in- 
stead of $2,321.50, it would have been at least six times 
that much. 



38 

The Indians afterwards held a council, and determined 
to send a messenger thirty miles, to consult a lawyer, with 
a request, if he deemed it advisable, to issue writs for the 
recovery of the money thus obtained upon false pretences. 

The lawyer prepared and issued the writs, and forward- 
ed them to the Indians. But the great number of writs 
required so much time to prepare them, that when the run- 
ner arrived, ^Ir. Rogers had passed into Macon, and thence 
passed on to Cherokee. His faithful friend, who stood at 
the pay-table and directed the fees to be paid, upon ascer- 
taining that writs had been sent for, took a bye-way through 
the mountains, headed Mr. Rogers, and, it is supposed, in- 
formed him of the pursuit of the sheriff. He obtained a 
horse, left the paymaster, and crossed the line into Tennes- 
see; and thus, by getting out of the reach of civil process, 
saved himself the trouble of procuring evidence which 
would have been more than the reflection of his own state- 
ment. 

This gave rise to the foregoing petition to the President, 
which, though unauthenticated, was forwarded to the Sec- 
retary of the Interior, and by him transmitted to the Com- 
missioner of Indian Afiairs for a report. 

Mr. Rogers being called, admitted in his report that he 
received the money of the Indians, but not so much as rep- 
resented. He goes on to state — 

" 1st. That he informed the Indians that if one man of them was dis- 
' satisfied with his own voluntary payment, to come forward and express 
' themslves, and that he would then and there, on the spot, return every 
' dollar; and not one of them came forward to express dissatisfaction. 

" 2d. He goes on to state he extorted nothing and demanded nothing. 
" I did admonish the Indians of the truth, that I had in this city rendered 
' them in respect to this fund, (which fact can here be made manifest,) and 
' that said Thomas's claim of per centage on his contract with them in re- 
' spect to the same fund, were extortionate ; that I said with the utmost 
' publicity." 

As to the amount of money, the Indians whose names 
are signed to the memorial are much more likely to be cor- 
rect tlian Mr. Rogers. As to his offering to give the money 
back to any of the Indians who were dissatisfied, it would 
seem very strange, if he had done so through an interpre- 
ter, that the interpreter should not know it, and that the 
Indians should send for writs to compel him to refund the 
money. 

The fact that he ran into the paymaster's room, and, after 



39 

obtaining a revolver, came out where the Indians were, of 
whom he had obtained fees, trenibhng like an aspen leaf, 
looked but little as if he supposed they w^ere so well satis- 
fied as at a distance his imagination now leads him to state 
they were. He states that his proposition to give back the 
money was made through an interpreter. This interpreter 
of whom he speaks was a man by the name of Thompson 
Carter. He is part Indian as well as Mr. Rogers, and 
therefore his evidence will not, I presume, be objected to. 

The affidavit of said Carter was taken before Joseph 
Keener, on the 13th of April, 1853. 

Question [asked by counsel for the Indians] — " Were you present at 
' Paint Town when William H. Thomas directed the Indians to stop the 
' payment of any further attorneys' fees until proof was made of services, 
' so that they could know whom to pay?" 

Answer — " I was present." 

Question — "After said Thomas had told the Indians not to pay any 
* more fees to Rogers — that he was not entitled to them — did you hear 
' Rogers offer to return the money to any of the Indians who had paid him 
' fees?" 

Jlnswer — I did not. I interpreted for Mr. Rogers at Paint Town, and he 
' did not offer to return the money, through me." 

On the same day, the affidavit of Charles Hornbuckle, the 
interpreter of the Methodist Missionary Society at that 
place, was taken before Mr. Keener : 

Question [by the counsel of the Indians who had made payment] — "Did 
' you see the Indians make payment to Mr. Rogers at the pay-table?" 

Jlnswer—'' I did, at Mr. Pete Sherril's." 

Question [by the same] — "Were you present at Paint Town when Wm. 
' H. Thomas directed the Indians to stop the payment of any other attor- 
' ney fees until proof was made of services, so that they could know whom 
' to pay to ? " 

Answer — " I was present." 

Question [by the same] — After the said Thomas had told the Indians not 
' to pay any more fees to Rogers — that he was not entitled to them — did 
' you hear Rogers offer to return the money to any of the Indians who had 
' paid him fees? " 

Jlnswer — " I did not. I heard no such offer, and I understand both lan- 
' guages." 

Next in order is the affidavit of Flying Squirrel, chief of 
Paint Town : 

Question [by the counsel for the Indians who had paid fees to Mr. 
Rogers] — " Were you present at Paint Town when Wm. H. Thomes di- 
' rected the Indians to stop the payment of any further fees until proof was 
' made of services, so that they could know whom to pay ?" 

Answer — " I was present." 

Question [by the same] — "After said Thomas had told the Indians not 
' to pay any more fees to Rogers — that he was not entitled to them — did 



40 

' you hear Rogers offer to return the money to any of the Indians who had 
' paid him fees ? " 

Answer — " I did not." 

These affidavits, sworn to before Joseph Keener, clerk of 
the court, are in my possession, and will be filed in your 
office if it is desired. I have other affidavits of the same 
character, which it is not deemed necessary to refer to. 

Thus it seems that, from the testimony of Mr. Rogers's 
interpreter and other persons present, instead of offering to 
give back the money, and the kind disposition of the Indians 
leading them to refuse it, when he went among them to 
tell of the services he had performed, it was with a revolver 
sticking out of his pocket. A Government officer, who had 
by false pretences obtained money of Indians by imposing 
upon their ignorance, probably thought that, without his 
revolver, they might resort to physical force to get back 
their money. A man of his courage, agreeably to his own 
reports of himself, certainly did not want any revolver to 
defend himself against any of the whites who were present, 
for they were peaceable and unarmed. 

But it is probable that Mr. Rogers supposed, if he could 
keep the Indians off" of him until he could get out of the 
State, and thus make his escape with fees which he had 
never earned, and get safe to Washington, and invest the 
money in property under another persons's name, as it is 
known he did do, he could then defend himself by drawing 
upon his imagination for whatever might be necessary in 
defence, or in slandering a man he had robbed of his hard 
earnings, and against whom, if he had not been like the 
frozen serpent totally destitute of the sense of gratitude, 
he would not have attempted to add insult to injury by de- 
faming his character. 

In the close of his report, he exonerates the disbursing 
officer, Mr. Chapman, " as wholly free from any encourage- 
ment of, or 'participation in, the payments made to him'' by 
the Indians. While his statement, b}^ itself, would with me 
have but little weight, Mr. Chapman's statement and report 
have satisfied me that there is at least one truth in Mr. 
Rogers's report — that Mr. Cliapman had nothing to do with 
this disgraceful transaction. 

In Mr. Chapman's report of the 7th of February he says, 
in speaking of his assistant, Mr. Rogers, having collected 
fees of the Indians — 



41 

" That on the first day of payment at Bird Town, this matter was spruntr 
' in my presence, suddenly and without the least admonition. * * * 
' It was stated by Mr. Rogers, as I was made to understand, to the Indians 
' assembled, that he had labored in their behalf, and was prepared with let- 
' ters of members of Congress to prove that he had done go. * * * * 
' At the close, I think, of the second day, on consultation with Mr. A. 
' Austin Smith, one of the assistants, that this proceeding might not wear 
' even the appearance of my sanction, I concluded to request and require 
' of Mr. Rogers, and did so, that nothing of the kind should be again re- 
' peated within my presence. Of what occurred subsequently, I know 
' nothing of my own knowledge." 

The report of Mr. Chapman explains how Mr. Rogers was 
looked upon by ignorant Indians ; and the representative 
of their Great Father, the President of the United States, 
strengthened his position by the assertion that he had let- 
ters " from members of Congress" in his possession, which 
proved that he " had labored in their behalf ^ 

The letter to which he has resorted to prove this shows 
conclusively that he had by misrepresentation contrived to 
make the writer suppose — and he gives it only in that 
form — that he had procured the insertion of the provisions 
in the treaty of 1846, which secured to the Eastern Chero- 
kees their portion of the per capita, when the reverse, as 
has been shown, was true. And that letter does not state 
that Mr. Rogers ever performed any services for the North 
Carolina Cherokees separately. At that time 1 represented, 
under powers of attorney, more of the Cherokees remaining 
in Georgia, even, than Mr. Rogers was authorized to repre- 
sent ; and with the evidence 1 have furnished, I might, with 
more propriety, have gone and claimed fees for representing 
the interest of the persons who employed him to prosecute 
their claims, because I had been the means of procuring this 
saying clause to be inserted in the treaty, when he was not 
in a condition to represent himself. At the time that treaty 
was concluded, Mr. Rogers, instead of opposing John Ross, 
whom he had abused for years, was walking about the Cap- 
itol with him, holding on to his arm, for two evident ob- 
jects — one to induce him to suppose he had become friend- 
ly with him ; and the other to enable him to navigate, be- 
in^ in need of physical as well as pecuniary means at that 
time, both of which Mr. Ross had the ability to supply. 

By examination of the records and papers filed in your 
office by the Commissioners who negotiated the treaty of 
1846, you will very likely discover that Mr. Rogers's name 
is only to be found on one paper, and that is a rejected gold 



42 

mine claim for himself, of only about $18,000, not present- 
ed by himself, but by Col. Stambaugh, one of the attorneys 
of the Western Cherokees. This claim, if I remember cor- 
rectly, was founded upon a supposition of what he could 
have made in a few years, if Georgia had permitted him to 
dig gold ; which, with his habits and energy, was probably 
more money than ten such men would have made in a life- 
time by working gold mines. 

While I was prosecuting the claims of the Cherokees to 
which reference has been made, I became acquainted with 
the unfortunate lady his wife, who is an excellent woman, 
worthy of a much better fate. I boarded a part of the time 
where they boarded, about 1843. From that time to 1849, 
his habits were such that it was obvious he would soon be 
incapable of attending to business of any description, and 
would be totally destitute of the means of supporting him- 
self and family ; and his imagination became so much per- 
verted by the long-continued influence of delirium tremens, 
that, agreeably to his own statement, he sometimes imagined 
very remarkable transformations. 

I will name one instance, which shows how far tlie imagi- 
ination may carry an individual. Coming home one night, 
between midnight and day, he got to the room occupied by 
his wife, and, pulling off his boots, he imagined that a trans- 
formation had taken place, and that he had become the 
boots, and the boots himself, and accordingly it was neces- 
sary to reverse positions ; so the boots were put into the 
beef, and he seated himself outside the door, to be blacked. 
It was only the known sound of his wife's voice that cor- 
rected the error of his imagination, and transformed him 
back to himself. 

While his estimable wife was striving to keep soul and 
body together by her needle and teaching a few scholars, 
this man, who, by virtue of an official position as assistant 
to the paymaster, was enabled to defraud the ignorant In- 
dians by representing that he had rendered them such val- 
uable services, was obtaining his drink after the fashion.of 
a noted character about Waslungton, known as Beau Hick- 
man — " rmgmg m " upon acquaintances and strangers for 
sums ranging from twenty-five cents to a dollar, under the 
false pretence of buying wood, going to market, &c. 

Upon its being suggested to me that employment might 
reform him, I went round to my acquaintances in Congress, 



43 

to get him employed to direct documents, but none wanted 
to employ such a drunken sot. Failing in my efforts to 
procure him employment, I determined to give him a fair 
trial myself; and, after communicating to his friends what 
I designed doing, I went to the librarian of the State De- 
partment, and asked his aid in an experiment for his ref- 
ormation, which was to set him to copying old books, with- 
out letting him know my purpose until I could get him cool 
enough to reflect. The librarian readil}^ entered into the 
project, and informed Rogers he could have the use of a 
desk to copy any books I desired. Here he remained, 
passing through a gradual reduction to the cold-water sys- 
tem, which took about a month, at no small expense to me, 
until restored to himself. He then concluded that, if he had 
the money, he would join the Sons of Temperance ; and, 
wishing to give him a fair trial, I advanced him the money 
he wanted. He joined the " Sons," and I believe has since 
remained sober ; but, as his subsequent conduct to me 
shows, he has not yet acquired any sense of gratitude or 
regard for truth. In addition to the report made to the 
Commissioner of Indian Affairs, he addressed a letter to 
Hon. Robert Johnson, dated 2d August, 1852, which con- 
tains a tissue of false assertions, to which, when the proper 
time arrives, and Mr. Rogers procures an endorser possess- 
ing either honor, veracity, or means, I may also give atten- 
tion. At present, it suffices to show that by the legislation 
of Congress and the appointment of the person above de- 
scribed as an agent of the Government, not only have I 
been deprived of the compensation justly due me for long 
years spent in the service of the Indians, but that agent, as 
a representative of their Great Father, has been enabled to 
perpetrate a gross fraud on them. 

After the United States, by my long perseverance as 
counsel for the Indians, had been compelled by public 
opinion to concede that injustice had been done to the 
Indians, and to provide for correcting the j)ast errors in 
the execution of the treaty — well knowing that the Indians 
were totally incompetent, if left to themselves, to accomplish 
these results, and that they had been produced by the 
labor of their counsel, whose authority to act for them 
had been recognised from the commencement — Congress, 
by the assumption of power rarely if ever exercised 
before by this or any other Government that made any 



44 

pretensions to be influenced by justice, passed an act that 
not only impaired the obligation of the contracts existing 
between the Indians and their creditors, but placed it out 
of the power of the latter ever to secure the payment of 
their debts. This was done by attaching the following pro- 
viso to the act making an appropriation to pay the Indians 
the money due under the treaties of 1835 and 1846, which 
is in these words : 

" Provided, that in no case shall any money hereby appropriated be 
' paid to any agent of said Indians, or any other person or persons than 
' the Indians to whom it is due." 

Under this provision of the law, many of the merchants 
who had credited the Indians in the States of Georgia, Al- 
abama, Tennessee, and North Carolina, to whom under the 
9th article the United States were required to make pay- 
ment out of the money due to the Indians, after waiting 
for the payment of their debts sixteen years, could not fail 
to see that tlie effect of the law w^as to violate the treaty, 
and enable the Indians to evade the payment of their debts. 
The creditors of the Indians had on their part complied 
w4th the requirements of the Government ; a Board of 
Commissioners had been appointed to examine and adjudi- 
cate these debts against the Indians ; judgments had been 
rendered in their favor, as the books on file in your office 
prove. 

During the removal of the tribe, the Government agents 
had to make fair promises, to enable them to remove the 
Indians west of the Mississippi. But, after thus getting 
the Indians beyond the reach of their creditors, instead of 
retaining the amount of tlieir debts, as required by the 
treaty, the law authorizes the money to be sent west, and 
thus enables the Indians to evade and defraud their credit- 
ors. And by this act of the Government, there are but few 
merchants in four States, that ever had an}' dealings with 
the Indians, who have not sustained more or less loss. In 
those States, if an individual aids to remove debtors to de- 
fraud their creditors, they become liable for the debts. If 
the Government is to be held liable in the same manner as 
individuals, it will be necessary to provide for the pay- 
ment of those debts, with interest, in the next treaty to 
be concluded, unless Congress provides otherwise for their 
payment. The amount of each debt can easily be ascer- 
tained by reference to the books of the Commissioners, on 
file in your office. 

B D 1.4 B /' '^ 



46 

It is probable that Congress, in passing the act referred 
to, overlooked the treaty stipulation that the just debts of 
the Indians should be paid, and that the proviso directing 
the payment to the Indians, in disregard of powers of at- 
torney, was not intended to have the effect it had in North 
Carolina, w^here the Indians are recognised as citizens of 
the State, and special laws have been passed, recognising 
and regulating contracts entered into with them. For cer- 
tainly Congress would not intentionally pass laws impair- 
ing the obligations of contracts existing under the laws of 
a sovereign State, between individuals amenable to those 
laws. 

But, however pure and praiseworthy the motive which 
prompted such legislation, its practical effect has been to 
abolish the relation of debtor and creditor, created by and 
under the laws of the State. It is a species of abolitionism, 
twin-sister to that which assails the rights of the States, 
and would destroy the Constitution, to abolish slavery. 
The one seeks to destroy the relation of master and slave, 
established by the laws of the Southern States; the other 
has rej)udiated, if not destroyed, the relation of debtor and 
creditor, established by the State of North Carolina. Both 
are equally unjust, equally opposed to the spirit of the 
Constitution, and alike mistaken and mischievous in their 
effects on those whose beneht is purposed or pretended. 
One teaches the black man to be disobedient and discon- 
tented, forcing upon his master more stringent laws and 
harsher measures to keep him in subjection ; the other 
teaches the red man to be dishonest, while it would deprive 
him of the benefit of counsel to protect his interest, and 
leave him unprotected and without a channel through 
which to utter a complaint — to be swindled and defrauded 
at pleasure by such Government officials and employees as 
Johnson K. Rogers. This is cruelty to the poor and igno- 
rant Indian, as well as gross injustice to the counsel, who 
have spent much time and money in protecting their rights 
from the misconstruction of the treaty by the agents of the 
Government, as well as against the intrigues of other por- 
tions of the tribe, seeking to appropriate to themselves the 
entire fund paid for the common property. 

The whole history of the Cherokee treaty and its execu- 
tion, shows in every page the necessity of counsel to pro- 
tect the rights and interests of the smaU portion of the 



46 

tribe remaining in North Carolina. Could they have pro- 
cured counsel, if it had been anticipated that the Congress 
of the United States would repudiate and set aside their 
contracts ? Would they have been able, without counsel, 
to prevent the attempt of John Ross and his counsel to de- 
prive them of their due share of the benefits of the treaty ? 
Why should they be thus virtually denied the privilege of 
employing counsel for the protection of their rights? Does 
not the Government of the United States, in all questions 
arising upon the construction of Indian treaties, employ 
and pay able counsel, in the persons of the Attorney Gen- 
eral and the Commissioner of Indian Affairs ? And if so, 
Avhy should the Indians be deprived of counsel, or their 
counsel be deprived of just compensation for their services? 
The United States Government have the exclusive privi- 
lege of making treaties for the purchase of Indian lands, 
and there can be no reason for denying to the Indians the 
aid of counsel to represent their rights under those treaties, 
the only effect of such denial of justice being to enable un- 
worthy Government officials to cheat the Indians out of 
the money promised them by the Government. 
All which is respectfully submitted. 

WILLIAM H. THOMAS. 



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